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Common as Marl

Thanks to geology, and some ancient laws, your electricity bill may contravene your rights, says Myc Riggulsford*.

Once upon a time we could all feed and water ourselves, and our families and livestock, house them, keep them warm, and get some power, simply from the land we lived on.  Among our most important ancient rights was the free use of geology – the right to collect and mould clay, the plastic of its time - a ‘Commons Right’, overlooked by historians, whose attentions have always focused on rights concerning grazing animals, or collecting firewood.

So widespread and important was the practice of ‘living off the land’ that, when it was denied to the lowliest peasants, their Revolt forced a young boy-king, Henry III (reigned 1216-1272), to issue a proclamation guaranteeing the rights of common people to go on getting their livings from the land that he had seized to form ‘forests’ and ‘chases’ - the mediaeval equivalent of modern theme parks.

Right to Marl

yuioyThis ‘Charter of the Forest’ was first issued on 6 November 1217 as a complement or codicil to the Magna Carta of 1215.  It was reissued in 1225, and merged with the Magna Carta in 1297.  Magna Carta, far from giving us our rights as free citizens, simply prevented Kings – first John and then his son Henry III - from taxing or imprisoning the barons without good reason (who went on oppressing the natives with Norman abandon).

We of common clay, the free peasantry, received the first formal recognition of our rights as commoners and some protection, under this Charter of the Forest from Henry III, then aged 10, and only a year after he took the throne. The Charter laid out privileges that had been steadily eroded under the Normans since 1066, especially by their habit of shooing people out of royal hunting-grounds - some, though not all of which, were wooded.  (This is why Dartmoor (distinctly bleak, windblown, and treeless across the tors) is still a ‘forest’ today - along with Exmoor and the New Forest. In fact many farms, fields, and even whole villages were designated as ‘royal forests’.)

Picture: This example of the 1225 Forest Charter is one of three surviving originals. In substance, it is similar to the Forest Charter of 1217, but includes the statement about the granting of a tax in return for the charter, and the same long witness list, as in the 1225 Magna Carta. Like Magna Carta, the 1225 Forest Charter was also sealed with the King’s Great Seal. This copy retains its original linen seal bag. Released under British Library copyright statement "Public Domain Mark 1.0" at

The ancient rights enshrined in the now forgotten Charter of the Forest include pannage (acorn, chestnut, and beech-nut pastures for pigs) also known as ‘common of mast’; estover (collecting firewood); turbary (cutting peat for fuel); agistment (grazing for livestock); the right to carry out small scale industries, such as charcoal-burning or clog or spindle-making; and, most importantly of all, the ‘common of marl’ - the right to dig clay-pits.  Digging clay might be done for a number of reasons, but they included ‘improving the land’. 

According to Oxford University’s handy facsimile - and helpful transcript - of the copy of the Charter of the Forest now preserved in Durham Cathedral Library: “Every free man may henceforth without being prosecuted make in his wood or in land he has in the forest a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour.”1

Charter of the free

The Charter starts with Henry III offering to give back any illegally seized hunting areas: “In the first place, all the forests which King Henry our grandfather made forest shall be viewed by good and law-worthy men, and if he made forest any wood that was not his demesne to the injury of him whose wood it was, it shall be disafforested.”

Then, he offers redress, to the users of land that was legally the Crown’s, but from which people were excluded so that the King could enjoy the chase:  “And if he made his own wood forest, it shall remain forest, saving common of pasture and other things in that forest to those who were accustomed to have them previously.” 

Since 1066 all land belonged to the King, except those granted to other noble families and churchmen – which by extension today, means everywhere covered by the Crown Estates and held by the Government and local councils on our behalf.

So there we have it.  If your family were used to carrying wood, bark or charcoal on their backs from such land, (an activity whose modern equivalent would be plugging your cooker into the mains), you should still be able to do so - and without paying taxes or connection charges.  It’s a law.

Commons Registration

Actually, it’s all a bit more complicated than that, since we unwittingly gave up many of our rights as commoners when the rather messy Commons Registration Act of 1965 came into force and most peasants were too stuffed with Sunday roast to point out that they would like estovers for the rest of the week, once they had done with the pannage. So our rights, long overlooked, were extinguished - or more correctly, simply forgotten.

The Commons Registration Act has been tinkered with ever since, as successive governments realised that stopping our sons of toil from enjoying their ancient rights, and removing their ability to survive by their own strength and hard work, makes them dependent instead on government largesse - welfare payments, tax credits and the much-resented benefits system – which also makes them reluctant to rock the boat, and so less likely to revolt (so long as we don’t realize what has been stolen).

At about the same time as the recent Financial Crisis hit our purses and pensions, a new charity, the Foundation for Common Land was established (2008). It tries to address some of the issues affecting those who have their ancient rights enshrined in law - including the right to dig clay, a right that was glossed over once more, because few today among the great and the good who people such august committees seem to understand just why ‘digging clay’ was so important2.

So, in a major report addressing these issues published in 1965, weirdly specific rights were discussed, rather than such things as building a home, getting fossil fuel for cooking and heating, and digging materials for making everyday household goods such as pots and pans.  So in the examples of Common Rights listed in the official report of the Common Land Forum, the all-important plastic clay gets lumped in under a general afterthought about ‘the right to dig stone’3

The vital point that was missed in all this, is that commoners’ rights were specifically bestowed upon a small group of people (some of whom still exercise them today, either because they want to, need to economically, because of bragging rights, or out of sheer bloody-mindedness).  However, all the rest of us, who were not aware that we had been displaced by the King’s wish to create a private hunting grounds, still enjoyed those same rights.

Commoners & commons

The reason that commons rights are enshrined in law today is that the peasants who needed them had been turfed off their shared land - as recognized by Natural England’s Graham Bathe in 2010, when he wrote: “…English law dictates that all land has an owner. A ‘common’ is simply an area of land where certain people have rights recognized in law, to take some produce from land that belongs to somebody else. These rights may include the authority to depasture animals, take sticks … or extract minerals from the soil. In England therefore, by definition, commons cannot be owned by those with rights, the commoners.”4.

Now it is a peculiarity of legislatures that laws are only ever passed when there is a problem – which is why we don’t have many laws restricting the number of elephants you can keep in the attic.  However, Parliament has seen fit to legislate against domestic abuse, or wealthy people evading taxes, or bribing politicians. These were all ‘problems’ because we clearly cannot simply rely on common decency and ethics from groups of people who have power over others. In other words, new laws usually address a specific but fairly widespread new threat.

We can deduce from this and the provisions of the Charter of the Forest that we all used to have the right to a home, food, a cooking fire, warmth, water and the wherewithal to live or carry on a small business - all baseline necessities which our countryside provided, and so well-known or obvious that they didn’t even need to be enshrined in law.

But once the descendants of Vikings invaded Britain from Normandy, it all went a bit pear-shaped.  Britain’s new rulers awarded themselves vast estates and acquired serfs and servants to do their hard work, freeing themselves up for the noble sport of hunting - for which they needed the ‘forests’.  And like any exclusive country or golf club today, that meant keeping the riff-raff out: sometimes by forced eviction of entire settlements.

Turfing the common people off the land had the unintended side-effect of making them destitute, so eventually the Crown (Parliament, today) had to pass commons laws for foresters to allow them back into the enclosed estates to carry out their usual activities, giving rights of access to the now private land to specific groups of people who lived there or had historic connection with it: rights and access which we should still be enjoying today, everywhere else across the countryside.

Feats of clay

These commons rights are usually described by modern historians and archaeologists in terms of the rights to get food for the table - such as piscary, the right to take fish (which includes rabbits, of course, if you’re Catholic and an avid follower of Pope Gregory I, who declared them a marine species in the Middle Ages, so suitable fare during the 180 fast days of monasteries, which often had warrens5).

But far fewer modern academic writers have concentrated on the right to marl.  Those that do mention it in passing seem to think that clay was being dug and applied as a fertiliser and soil enhancer. Now, I don’t know if you have ever tried pushing a breast plough, or driven an oxen team pulling a plough, or dragged even a simple device like an ard across heavy clay, but the reason that many clay soils went uncultivated until after the invention of the tractor is that – you can’t.

uiyI own a small farm (not the one pictured!) on the culm measures of North Devon, on underlying bands of shillett and clay, (which means that like a worn-out mattress, springs often pop out in very unusual places).  Believe me, the last thing you’d want to do is add more clay to any of our vegetable beds. On the contrary – we had to dig out and discard some of the clay, and mix the more friable topsoil 50:50 with well-rotted manure, composted straw from the lambing shed, and even some of the riper bits of fleece from sheeps’ back ends, just to get the soil to drain, warm up, and allow tender crops to grow.

Picture: A traditional cottage built of cob.

So I don’t believe for a moment that clay was being dug for ‘fertiliser’. But, along with hazel and willow withies (used for making baskets, sieves, hurdles, bed frames, chairs, kitchen kit, garden and farm tools, and other small implements) clay was indeed the plastic of earlier times. It was used to make domestic pots and pans; it could be puddled or pushed into an impermeable layer to form a pond, or fashioned into tiles to put a roof over your head.


uiyIt could, as cob (a mixture of clay, small stones and straw) be used to build walls.  Our 1650s cob farmhouse, basically a mud hut, is still standing perfectly soundly after all this time.  Or it could be used as daub and flung onto wattles of split oak or chestnut to form interior walls and partitions.  As a cheap and ancient alternative to cement, it’s remarkably good at holding stacks of stone together in walls. Indeed, it is so sustainable and insulating that it’s even enjoying something of a revival today among the ‘green building’ community.

Picture: Cob puddling, and a cob wall being built.

Clay can (and still is, at hippier summer festivals) be formed into ‘cloam’ ovens to bake pasties, pies and bread rolls.  In a more communal age, when not every household was grand enough to own its own fireplace or oven, clay was thus used to make a communal bread oven, as well as the hamlet’s bottle kiln for firing domestic cooking ware, pots, jugs and plates.  Enterprising communities may even have had a small brick kiln, fired to a higher temperature with wood and charcoal.

In other parts of the country, Mark Bowden of English Heritage notes, other valuable types of rock could also be freely dug up by commoners and used by right (especially in areas where coal seams are close to the surface such as in the Forest of Dean or Newcastle, and in places such as Swansea where lime, as a soil fertiliser, or building stone was readily and freely available6.

Universal right

Right of estovers allowed peasant households to make all the things they needed for everyday domestic and work chores - taking small tree limbs for essential house repairs (the trunk would be ‘timber’, usually owned by the local lord, but underwood was used every day), making farm implements, hurdles, fallen wood for fuel, bracken and heather to stuff beds. But the right to marl, the common of soil, meant that people could even use the geology they lived on to build the house or hovel they huddled in.

Today, politicians may toy with ideas of Universal Basic Income - even trying out pilot schemes in Finland and Canada - as a way of guaranteeing all citizens the necessities of life.  But these are rights we may well already own, as our shared Commons; rights that we have simply forgotten about and allowed to lapse.




  1.  and Statutes of the Realm, Vol. 1 (London, George Eyre and Andrew Strahan for the Record Commission, 1810), Charters, opposite Page 20, taken from the manuscript of the Charter of the Forest held in the archives of Durham Cathedral.
  3. The Common Land: Report of the Common Land Forum, Appendix C to the Report of the Registration Sub-Committee of the Common Land Forum of deficiencies in the operation of the Commons Registration Act 1965, recognizes under Chapter 5, Rights other than grazing, paragraph 076, that “Examples include … estovers, pannage, piscary, turbary… and [lumping in clay or marl with any other rocks] the right to dig stone”.
  4. Ref: Of Commoners and Kings, Graham Bathe, Natural England in Landscape Archaeology and Ecology, End of Tradition, Vol 8 Sept 2010 pp25-38.
  5. Journal of Fish Biology, Volume 65 Page 1. December 2004.
  6.  ‘A Very Fair Field Indeed…’ the archeology of town commons in England, Mark Bowden, English Heritage, Natural England in Landscape Archaeology and Ecology, End of Tradition, Vol 8 Sept 2010 pp39-41. “The uses of urban commons, as noted above, included… mineral extraction, which by contrast left its mark; coal mining remains on Newcastle Town Moor, massive quarries and their extraction route ways on Beverley Westwood, Hungerford Common and Corfe Common, for instance”.



uioy*Myc Riggulsford is a science and environment journalist, and for over 15 years was a visiting postgraduate lecturer at Manchester, Sheffield and St Andrews Universities, hosted Europe’s largest science teaching festival Science on Stage, and ran science communication and media training for the British Geological Survey. In 2012 he was appointed to Exmoor National Park Authority as designated Independent Person serving as adviser to the Standards Committee, a role which he holds today. All opinions expressed are his personal ones, and do not reflect the policies or opinions of the National Park or any other organisation. Myc keeps a small flock of Exmoor Horn sheep on his smallholding in North Devon.  W: and